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SCOTUS Upends Civil Rights Act Ruling On Sex Discrimination

Justice Alito dissented, noting the definition of sex is not one that can be modified through the Court’s interpretation,


The United States Supreme Court on Monday ruled that the definition of sex in a federal civil rights law expanded to include sexual orientation and gender identity, ensuring the protection of gay, lesbian, and transgender people from being reprimanded or fired at work. This controversial decision comes after multiple failed legislation attempts in Congress over the last 15 years to rewrite the definition of the word “sex” into law.

The ruling was 6-3 with Justice Gorsuch and Justice Roberts, both appointed by Republican presidents, voting with the majority while Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh dissented on the grounds that the definition of sex is not the Court’s decision. 

In the majority opinion delivered by Justice Gorsuch, the Court cited the 1964 Civil Rights Act and Title VII as both essential and applicable to the Court’s opinion on the matter.

“The answer is clear,” wrote Justice Gorsuch. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

In the dissent, however, Justice Alito pointed out that the definition of sex is not one that can be modified through the Court’s interpretation and has repeatedly failed to pass through the legislative branch.

“Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: ‘race, color, religion, sex, [and] national origin.’ 42 U. S. C. 2000e–2(a)(1). Neither ‘sexual orientation’ nor ‘gender identity’ appears on that list,” Justice Alito wrote. “For the past 45 years, bills have been introduced in Congress to add ‘sexual orientation’ to the list, and in recent years, bills have included ‘gender identity’ as well. But to date, none has passed both Houses.”

Although many LGBTQ advocates praised the decision and the surprising support from Justices Gorsuch and Roberts, conservatives condemned the decision on the grounds that it was not the Supreme Court’s decision to “redefine the meanings of words,” and that the court has usurped lawmakers’ authority by doing so.

“Justice Scalia would be disappointed that his successor has bungled textualism so badly today, for the sake of appealing to college campuses and editorial boards,” said Judicial Crisis Network President Carrie Severino. “You can’t redefine the meaning of words themselves and still be doing textualism. This is an ominous sign for anyone concerned about the future of representative democracy.” 

Heritage Foundation senior research fellow Ryan T. Anderson, who wrote about these cases in Harvard Journal of Law and Public Policy, noted the word “sex” refers to male and female biology, not gender identity or sexual orientation.

“Today’s ruling will have severe consequences for the privacy, safety, and equality of all Americans. The Court has rewritten our civil rights laws in a way that will undermine protections and equal rights of women and girls,” Anderson said.